TT & W Farm Products, Inc. d/b/a Heartland Catfish Company, Inc. and Heartland Alabama, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 21, 2010

26-CA-023722 (N.L.R.B. Dec. 21, 2010)

JD–70–10
Itta Bena, MS
Greensboro, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TT & W FARM PRODUCTS, INC. D/B/A
HEARTLAND CATFISH COMPANY, INC. AND
HEARTLAND ALABAMA, LLC
and Case 26-CA-23722
TONEY WILLIAMS, AN INDIVIDUAL
William T. Hearne, Esq., for the Acting General Counsel.
John S. Burgin, Esq., for the Respondent.
Spring Miller, Esq., for the Charging Party.
DECISION
Statement of the Case
ROBERT A. GIANNASI, Administrative Law Judge. This case was submitted to the
Judges Division pursuant to a joint motion for issuance of a decision based upon the waiver of
an evidentiary hearing and approval of detailed stipulation of facts under Section 102.35 (a)(9)
of the Board’s Rules and Regulations.
On November 9, 2010, the motion was granted and the case was assigned to me. The
parties agree that the charge, first amended charge, complaint, amended complaint, answers to
complaint and amended complaint, order indefinitely postponing hearing, the stipulation of
issues and facts and each party’s statement of position constitute the entire record in this case.1
The amended complaint alleges that Respondent violated Section 8(a)(1) of the Act by
maintaining several handbook rules at its Mississippi and Alabama facilities that are overbroad
and unreasonably infringe upon the Section 7 rights of employees. Respondent’s answer
denies the essential elements of the complaint. On December 9, 2010, the Acting General
Counsel and the Respondent filed briefs in support of their positions, which I have carefully read
and considered.
Jurisdiction
Respondent, a Mississippi corporation with offices and places of business in Itta Bena,
Mississippi, and in Greensboro, Alabama, is engaged in the business of catfish processing and

1 Only the Acting General Counsel’s statement of position appears in the record. I was
administratively advised that the Respondent did not submit a position statement.
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sales. It is stipulated that Respondent is an employer engaged in commerce within the meaning
of Section 2(2), (6) and (7) of the Act.
The Stipulated Facts
Respondent’s Mississippi facility employs about 460 employees; its Alabama facility
employs some 190 employees. The employees at those facilities work on an assembly line,
which begins with live catfish being received and ends with the shipment or storage of catfish
filets. The Mississippi facility processes approximately 300,000 pounds of catfish per day; the
Alabama facility processes approximately 200,000 pounds of catfish per day. At both locations,
the assembly line consists of employees unloading live-haul trucks and weighing fish, sizing
each fish and sending it to the appropriate line for processing, de-heading and eviscerating,
skinning and filleting, chilling and trimming, grading, and, finally, weighing, packaging, and
labeling the fish for shipment to customers.
Since at least March 20, 2008, and at all material times since then, Respondent, at its
Mississippi facility, has maintained an employee handbook, which contains, among other things,
work rules, policies and procedures applicable to employees working at the facility. Respondent
has disseminated the handbook to all employees at the Mississippi facility as part of its
orientation for new employees. During the orientation, Respondent’s human resources
personnel review the handbook with employees. After the orientation, the handbook is returned
to Respondent. Thereafter, a copy of the handbook is maintained in the human resources
department at Respondent’s Mississippi facility and made available to employees upon request
for review and/or inspection.
Since at least March 20, 2008, and at all material times since, Respondent has required
employees at its Mississippi facility, including the Charging Party, to sign an Employee
Handbook Acknowledgement Form that reads as follows:
This is to certify that I have reviewed the employee handbook at the start of my
Employment with Heartland Catfish. I also understand that I am responsible for
Abiding by all rules, policies and procedures outlined in the handbook.
Since about September 2008, and at all material times since then, Respondent, at its
Alabama facility, has maintained a similar employee handbook applicable to employees
employed at the Alabama facility. That handbook, like the Mississippi handbook, has been
disseminated to employees as part of Respondent’s orientation for new employees. The
handbook is reviewed with employees by Respondent’s human resources personnel and
thereafter returned to Respondent. A copy of the handbook is thereafter maintained in the
human resources department at Respondent’s Alabama facility and made available to
employees upon request for review and/or inspection. Since at least September 2008, and at
all material times since, Respondent has required employees at its Alabama facility to sign an
Employee Handbook Acknowledgement Form identical to that signed by employees at the
Mississippi facility.
Both handbooks, which are 26 pages in length, contain the following provisions:
The policies that are set forth in this handbook may have to be changed from
time to time out of necessity. . . . These policies and procedures reflect the way
we will handle ordinary matters concerning your employment with the company.
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Your supervisor/group leader will answer any specific questions you have about
these policies and procedures and will be glad to help you in any way that he or
she can.
Page 2 of both handbooks contains the following rule:
NON-INTERFERENCE WITH WORK
Working time is for work. There will be no solicitation of any kind and no
distribution of literature of any kind by any employee during work time. You
should accomplish your work and not interfere with other employees trying to
accomplish their work. Work time does not include the time before your
scheduled work day begins, the time after you have completed your scheduled
work day, or your break and lunch periods. Employees are not permitted to
engage in the distribution of advertising material, literature or other non-work
materials at any time in work areas. Persons not in the employ of the company
will not be permitted to make solicitations or distributions of any kind on plant
property at any time.
Page 9 of both handbooks contains the following rules:
REGULAR ATTENDANCE
The job security of every employee depends on how much you help to make the
plant operate efficiently. One of the most important contributions that each of us
can make to an efficient operation is to report to work regularly and on time.
Being on time means being at your workstation, ready for work at the starting
time of your shift and remaining on the job until quitting time of your shift.
Absence or tardiness for any reason must be reported to your supervisor or to
the Human Resources Department by no later than 8:00 a.m. on the date of the
occurrence. Failure to properly report absence or tardiness may result in
appropriate disciplinary action.
COMMON SENSE
We are all expected to act like responsible adults and to treat each other and the
company with fairness and respect. Therefore it should go without saying that
things such as abusive, indecent or dishonest conduct; horseplay, gambling or
other illegal conduct; fighting or provoking a fight; assaulting or threatening
violence; using obscene or abusive language toward another person; and/or
making disparaging remarks about the company are strictly prohibited.
(Emphasis added.)
Page 10 of both handbooks contains the following rule:
WORK STATION
You are expected to be at your workstation during working hours and you should
obtain permission from your supervisor or the Plant Manager before leaving the
work station or plant.
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Page 21 of both handbooks sets forth minor offenses which will be
considered cause for disciplinary action. Included in item 2 is the following language:
Leaving your workstation without permission or approval.
Page 11 of both handbooks contains the following provision:
CONDUCT
Written rules or policies cannot cover all conduct which may be expected of
employees…. In deciding the discipline to be imposed, consideration will be
given to the facts of the particular case.
Page 16 of both handbooks contains the following provision:
POLICIES
The company has established policies that will be used as a general guide for all
employees.
Pages 18 and 19 of both handbooks contain Respondent’s absenteeism,
attendance and punctuality policy for employees at Respondent’s Mississippi and
Alabama facilities. That policy includes inter alia, the following provisions:
(a) To maintain a productive and safe work environment, employees must be
dependable and punctual in reporting for scheduled work. Absenteeism and
tardiness places a tremendous burden on other employees and are disruptive to
company operations.
(b) . . . leaving the plant without your supervisor/group leader’s permission
is considered a major violation of the attendance policy and such an
incident will be treated as a voluntary quit.
Page 20 of both handbooks contains the following provision:
OUR MUTUAL INTERESTS
For the same reason that a municipality makes laws and regulations to protect
the rights of citizens, certain rules and regulations need to be observed in any
organization where considerable numbers of people are working together. Here
at Heartland Catfish, our rules and regulations are not made as restrictive
measures, but as means of furthering cooperation among employees and
safeguarding the rights, health, safety and security of all concerned.
Pages 22 and 23 of both handbooks list major offenses that may be
considered cause for immediate discharge and intolerable offenses that will be
considered cause for immediate discharge. Included in the list of major offenses is the
“unauthorized selling or distributing of tickets, soliciting contributions, or distributing
handbills or similar literature on Company property at any time.” (Emphasis added.)
Included in the list of intolerable offenses which will be considered cause for
immediate discharge are the following:
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(a) Removing from the plant or revealing to an unauthorized person classified
or proprietary information without approval.
(b) Bearing false witness for or against the Company under any and all
conditions.
(c) Willfully restricting production, impairing or damaging product or
Equipment, interfering with others in the performance of their jobs or engaging
or participating in any interruption of work. (Emphasis added.)
(d) Walking off the job or leaving the plant without permission or notifying the
supervisor.
Page 24 of both handbooks contains inter alia, the following provision:
COMMUNICATION PROCEDURE
It is the company’s sincere belief that the prompt and effective use of the problem-
resolving procedure can help maintain the harmonious relations which everyone
so strongly desires. It is has been and always will be the policy of the company
to listen and give full attention to every employee. There will be no retaliation
against anyone for his or her part in the presentation of a complaint, suggestion or
question will be handled as confidentiality as possible.
. . . .
We encourage you to seek solutions to any concerns you have at those levels of
Supervision closest to you but in the event they are not or cannot be resolved by
your supervisor/group leader, we want you to feel free to talk with any member of
management that you feel comfortable with.
There are no allegations of violations of Section 8(a)(3) in this matter.
Nor are there any allegations that Respondent unlawfully or discriminatorily enforced
any of the work rules at issue in this proceeding. In addition, none of the handbook rules in
question were first promulgated in response to union organizing activity.
Discussion and Analysis
An employer may not promulgate a rule that has a chilling effect on protected rights
under the Act, including the right to organize or join a union. Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999). Even if a rule does not explicitly
restrict protected activity, the Board has determined that the rule will constitute a violation [of
Section 8(a)(1) of the Act] if: “(1) employees would reasonably construe the language to prohibit
[protected] activity; (2) the rule was promulgated in response to union activity; or (3) the rule has
been applied to restrict the exercise of [protected] rights.” Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004). In giving the rule a reasonable reading, the Board refrains from
reading particular phrases in isolation. Ibid. And ambiguities are construed against the
promulgator of the rule. Lafayette Park Hotel, cited above, 326 NLRB at 828. See also Auto
Workers v. NLRB, 520 F.3d 192, 197 (D.C. Cir. 2008); and Cintas Corp. v. NLRB, 482 F.3d
463, 467-470 (D.C. Cir. 2007).
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The Acting General Counsel alleges that Respondent’s rules run afoul of the above
principles in several respects. First, it is alleged that the rule prohibiting distribution of handbills
or similar literature on company property at any time is too broad because it prohibits
distributions during nonwork time in nonwork areas, without a legitimate business justification,
activity that is clearly protected under the Act. Secondly, it is alleged that the rule prohibiting
disparaging remarks about Respondent infringes on the protected right to criticize management
during protected activity. Third, it is alleged that Respondent’s rules against interruption of work
and leaving one’s work station broadly interfere with the right of employees to strike or engage
in a work stoppage. Fourth, it is alleged that the rule against revealing classified or proprietary
information prohibits employees from discussing wages and benefits among themselves or with
a union, clearly protected activity under the Act. Finally, it is alleged that the rule against
bearing false witness broadly prohibits employees from making merely false, rather than
maliciously false, statements during the course of protected activity.
As shown below, I agree with the Acting General Counsel that, on this stipulated record
and in accordance with the applicable principles discussed above, three of the above rules are,
on their face, unlawfully broad or ambiguous, and can be reasonably read by employees to
infringe on their protected rights within the meaning of the Act. Thus, I agree with the Acting
General Counsel that maintenance of those rules, even absent enforcement, constitutes a
violation of Section 8(a)(1) of the Act. However, I find, in agreement with the Respondent, that
two of the rules—those dealing with disparagement of the Respondent and the revelation of
classified or proprietary information—cannot reasonably be read to interfere with protected
rights and are thus lawful rules. I will therefore dismiss the complaint allegations regarding
those two rules.
The No-Distribution Rule. Paragraph 6(e) of the complaint alleges as unlawful
Respondent’s rule providing for immediate discharge for the “unauthorized selling or distribution
of tickets, soliciting contributions, or distributing handbills or similar literature on Company
property at any time.” According to the Acting General Counsel, the last clause in the rule
contains an unlawfully broad prohibition. As the Acting General Counsel points out in his brief
(Br. 12), the distribution of literature involving union activity or terms and conditions of
employment during nonwork time and in nonwork areas of an employer’s premises is protected
activity. See Hale Nani Rehabilitation, 326 NLRB 335 (1998); and Stoddard Quirk Mfg. Co., 138
NLRB 615, 621 (1962). Thus, a rule broadly prohibiting such distribution is unlawful. See Turtle
Bay Resorts, 355 NLRB No. 147 (2010), incorporating by reference 353 NLRB 1242, 1271
(2009). In accordance with those cases, as well the general principles set forth in Lafayette
Park Hotel and Lutheran Heritage Village-Livonia, discussed above, I find that the Respondent’s
no distribution rule is unlawfully broad.
Respondent alleges (Br. 6) that the language in the last clause of the rule—prohibiting
the distribution of “handbills or similar literature” relates back to the selling or distribution of
“tickets” or “soliciting contributions” in the first part of the rule and thus the entire rule is lawful.
But Respondent’s attempt to parse the language of the rule is unavailing. Had its alleged
interpretation been the operative one, the rule would have prohibited selling or distribution of
tickets by handbilling or similar literature. It does not. Selling or distributing tickets, soliciting
contributions and distributing handbills or similar literature are three distinct types of conduct, all
of which are prohibited. Thus, the rule clearly prohibits the distributing handbills or similar
literature on company property at any time. Any reasonable employee (or reasonable person)
reading the rule would read it as such. That reading, of course, too broadly prohibits the
distribution of handbills or similar literature dealing with union or terms and conditions of
employment, both as to time and place. The rule thus has the reasonable tendency to limit and
proscribe protected activity.
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Respondent’s reading is not only wrong grammatically, but, even if its reading were
possible, Respondent’s reading simply illustrates that the rule as presently written is ambiguous.
To avoid any such ambiguity, all the Respondent has to do is rewrite the rule to make it clear
that it only bans the sale or distribution of tickets or the solicitation of contributions or that its
present language does not prohibit lawful union or other protected activity by employees in
nonwork areas on nonwork time. The fact that it has not done so establishes at the very least
an ambiguity that must be held against the promulgator of the rule. See Naples Community
Hospital, 353 NLRB No. 171, slip op. 1 and ALJD slip op. 50-51 (2010).
In its brief (Br. 7), Respondent also contends that there is no evidence that the
employees have actual knowledge of the existence of the no-distribution rule since the only time
the employees see the handbook is when they are first hired. The Respondent makes the same
contention with respect to all the handbook rules alleged as unlawful (Br. 5). The contention,
whether it applies only to the no-distribution rule or all of the rules alleged as unlawful, is without
merit. Each employee is required to sign an acknowledgement that he or she is “responsible for
abiding by all rules, policies and procedures outlined in the handbook.” Moreover, the specific
penalty for violation of the no-distribution rule is immediate discharge. Other violations have
similar penalties. Surely, Respondent is not contending that the rules in the handbook do not
apply and that it cannot penalize employees for violating the rules simply because the
employees did not know about the rules or did not see the handbook since they were first hired.
Nor does the handbook state that the employees are excused from following the rules because
they did not know about them or did not see the rules since they were first hired.
Nor is Respondent’s unlawful no-distribution rule on page 22 of its handbook rescued
because, as it seems to argue (Br. 6), the handbook also has what Respondent contends is a
lawful no-solicitation/distribution rule at page 2 of the handbook entitled, “Non-Interference with
Work.” The thrust of the no-interference statement, which is in the introductory section of the
handbook, along with other employment policies, such as its statement that it does not favor
unions, is altogether different; it defines work and worktime and does not speak of what can or
cannot be done on company property, unlike the unlawful no-distribution rule. In any event, the
earlier statement does not negate the unlawful no-distribution rule, which comes immediately
after a reference to major offenses that result in immediate discharge. At the least, the
employees would be confused as to the conduct that subjected them to immediate discharge.
See Farr Co., 304 NLRB 203, 215 (1991).2

2 Respondent cites two cases in support of its position. Both are distinguishable. In
Children’s Center for Behavioral Development, 347 NLRB 35, 37 (2006), the Board found lawful
an explicitly limited rule prohibiting employees from soliciting for personal gain or profit. In
contrast, the rule in this case, as I have found, broadly prohibits “distributing handbills or similar
literature.” In NLRB v. Mock Road Super Duper, Inc., 393 F.2d. 432, 435 (6th Cir. 1968), the
other case cited by Respondent, the Sixth Circuit refused to enforce a Board order finding the
maintenance of a no-solicitation rule unlawfully broad because there was no evidence that the
rule was unlawfully applied and, in the Court’s view, the use of the word solicitation in the rule
meant selling. This case is different. Not only is distributing literature different from solicitation
or selling, but I have found that the broadly phrased prohibition against handbills and other
literature in the instant case had nothing to do with distributing tickets or soliciting contributions.
Moreover, Mock Road Super Duper was decided over 30 years before Lafayette Park Hotel and
Lutheran Heritage Village-Livonia, cited above, the Board’s definitive rulings on this subject,
which have received court approval and make clear that, in certain cases, like this one, even the
simple maintenance of a broad rule, without enforcement, amounts to a violation. In any event,
Continued
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The No-Disparagement Rule. Paragraph 6(a) of the complaint alleges that the
Respondent’s no-disparagement rule is too broad and violates Section 8(a)(1) of the Act. That
rule is entitled, “Common Sense”, and provides that “[w]e are all expected to act as responsible
adults and to treat each other and the company with fairness and respect. Therefore it should
go without saying that things such as abusive, indecent or dishonest conduct; . . . and/or making
disparaging remarks about the company are strictly prohibited.” It is the last clause that the
Acting General Counsel asserts is unlawful because, it is alleged (Br. 5), even negative
comments about an employer are protected if they involve working conditions and are not so
disloyal, reckless, or maliciously untrue as to lose the Act’s protection, citing Endicott
Interconnect Technologies, 345 NLRB 409 [sic., should be 448, 450] (2005). See also NLRB v.
Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), the lead case defining
which comments are protected and which are not, in such circumstances.
It is true that employees who are engaged in a labor dispute and, in the course of that
dispute, make disparaging comments about their employer, do not lose the protection of the Act
if those comments are not so “misleading, inaccurate, or reckless, or otherwise outside the
bounds of permissible speech, to cause [the employee] to lose the protection of the Act.”
Endicott Interconnect, above, 345 NLRB at 451, quoting from Titanium Metals Corp., 340 NLRB
766, 766 fn. 3 (2003), enf. denied on other grounds 392 F.3d 439 (D.C. Cir. 2004). In Endicott,
an employee was fired for posting a statement on the internet, in connection with a union
campaign and in response to a pro-union statement, which was critical of the employer for “job
losses” that hurt employees. The statement went on to refer to the employer “being tanked” and
“put into the dirt.” In Endicott and most other cases involving the Jefferson Standard criteria, the
Board considers whether the employee is disciplined for engaging in protected activity and
whether improprieties during such protected activity are such as to make the conduct
unprotected. The balancing of the competing interests in these cases is fact-specific.
By contrast, in assessing the impact of an unenforced rule, without a factual context, the
Board is tasked with determining whether a reasonable employee could view the rule as
infringing on his protected activity. See Lutheran Heritage Village-Livonia, cited above, 343
NLRB at 647, where the Board found that the maintenance of a rule banning abusive or profane
language was not unlawful in part because such language is not an inherent part of protected
activity and the alleged infringement of protected rights in such situations depends on the
“specific facts of each case.” In the context of the entire written rule in this case, I cannot find
that a reasonable employee would construe the no-disparagement rule in this case to unlawfully
limit his protected activity. First of all, the rule is not accompanied by a specific penalty, such as
the no-distribution rule. The no-disparagement rule, which is entitled, “Common Sense”, comes
at page 9 of the handbook, after a no-smoking rule and a no-drug, no-drinking rule; it covers
horseplay, threatening violence, and using obscene or abusive language. It does not refer to
protected activity or labor disputes. Indeed, in its reference to disparaging comments, the rule
may reasonably read as focusing on unprotected rather than protected conduct. Moreover, in
the absence of a more precise factual context, I do not believe the rule could be read to limit
protected activity. The Act comes into play only when the terms of a rule come into conflict with
protected activity or a labor dispute. And the Jefferson Standard rule requires a close analysis
of the facts in each case. The Respondent’s no-disparagement rule thus has the same tenuous
connection to protected activity as the rule considered in Lutheran Heritage Village, cited above,
343 NLRB at 647. In these circumstances, I cannot find that the existence of the rule itself
_________________________
where a circuit court differs from Board law, I am bound to follow Board law. See Waco, Inc.,
273 NLRB 746, 749 fn. 14 (1984).
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could reasonably be read to infringe on protected rights. I therefore will dismiss the alleged
violation set forth in paragraph 6(a) of the complaint.

In support of his position, the Acting General Counsel cites Claremont Resort & Spa,
344 NLRB 832 (2005). However, the case is distinguishable. In Claremont, the Board found
unlawful a rule prohibiting “negative conversations” about employees and/or managers because
it could reasonably be construed by employees to bar them from discussing with their coworkers
complaints about their managers that affect their working conditions. The rule in the instant
case cannot be so read because, in context, it does not refer to conversations between
employees. Moreover, the reference to disparagement in the instant rule is much more focused
on unprotected conduct than is the reference to “negative conversations” in the rule found to be
unlawful in Claremont.
Rules Against Interruption of Work and Leaving Work Station. This violation is alleged in
several paragraphs of the complaint, which track language in different handbook rules, the
violation of which call for discipline or discharge or treatment as a voluntary quit. The Acting
General Counsel’s brief on the point generally lumps all the allegations into one discussion (Br.
6-8). But, as the Respondent accurately points out (Br.7-8, 18-19), the complaint alleges this
violation in portions of paragraphs 6 (b), (c), (d), and (f). Essentially, all the allegations may be
viewed as contesting the language and the rules that prohibit the interruption of work and
leaving one’s work station without permission. To the extent that those rules and that language
may reasonably viewed as precluding employees from engaging in a protected strike or work
stoppage, those rules and that language are violative of the Act. See Labor Ready, Inc., 331
NLRB 1656. 1656 fn. 2 (2000); and Crowne Plaza Hotel, 352 NLRB 382, 387 (2008), citing
NLRB v. Washington Aluminum Co., 307 U.S. 9, 16-17 (1962), which makes it clear that
employees may strike, notwithstanding a similar rule against leaving the work place in the
absence of permission from the employer. Both Labor Ready and Crown Plaza involved, like
this case, the legality of the maintenance of restrictive rules, in the absence of actual
enforcement. In these circumstances, I find that a reasonable employee would interpret the
Respondent’s rules and language prohibiting leaving the work station and interrupting work
without supervisory approval as prohibiting as well lawful strikes and work stoppages. The rules
are thus unlawfully broad and violative of Section 8(a)(1) of the Act. See also Turtle Bay
Resorts, cited above, 353 NLRB at 1271-1272 (2009).
Respondent’s contention (Br.19), that one of the rules (paragraph 6(f) of the complaint)
simply prohibits deliberate slowdowns or the interference of the work of other employees, which
may be unprotected, is without merit. The language in the rule is not so restrictive and cannot
reasonably be read that way. The last phrase of the rule, which is set forth in the disjunctive,
prohibits “engaging or participating in any interruption of work (emphasis added).” In any event,
the other rules and the other language dealing with this subject are clearly unlawful. To the
extent that Respondent argues (Br. 9) that safety concerns justify all of the rules prohibiting
leaving one’s work station or interfering with work without permission from a supervisor, that
argument is not sufficient to overcome the right of employees to leave their work stations
without the permission of a supervisor to strike over safety concerns or any other legitimate
dispute over working conditions. There is no reference to alleged safety concerns in the rules
under consideration here, and, on their face, Respondent’s alleged safety concerns do not
justify the broad prohibitions set forth in its rules. Thus, Respondent has not established a
legitimate business reason for the rules that would overcome the clear interference with the right
to strike.
Respondent’s citation of Wilshire at Lakewood, 343 NLRB 141 (2004), vacated on other
grounds, 345 NLRB 1050 (2005), reversed and remanded sub. nom. Jochims v. NLRB, 480
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F.3d 1161 (D.C. Cir. 2007) is inapposite because the case is distinguishable. In that case, the
Board affirmed the judge, who found that a job abandonment rule could not reasonably be read
to interfere with the right to strike, but rather was meant to ensure that nursing home patients
not be left without adequate care during an ordinary workday. Id. at 144. The case was fact-
specific, dealing with the care of nursing home patients. The Respondent’s operation does not
present similar concerns and thus Wilshire does not apply. See Crown Plaza Hotel, cited
above, 352 NLRB at 387, similarly distinguishing the Wilshire case. SMI Steel, Inc., 286 NLRB
274 (1987), also cited by Respondent (Br. 10), is likewise distinguishable. That case involved
an allegation of discriminatory enforcement of a rule, not, as here, the maintenance of an
unlawfully broad rule. Thus, the Board, which affirmed the violation, properly modified the
judge’s order to conform it to the violation found.
Non-Revelation of Classified or Proprietary Information. Paragraph 6(f) of the complaint
alleges as unlawful the handbook rule that prohibits “revealing to an unauthorized person
classified or proprietary information without approval,” which is labeled an intolerable offense
punishable by immediate discharge. The Acting General Counsel asserts that the language in
this rule interferes with the protected activity of employees because it precludes their discussion
of wages and other terms and conditions of employment, citing cases that hold that rules
precluding such discussions or sharing such information with others violates the Act. See
Bigg’s Food, 347 NLRB 425, 425 fn. 4 (2006); and Flamingo Hilton-Laughlin, 330 NLRB 287,
288 fn. 3, 291-292 (1999). Respondent counters that its rule does not specifically refer to
discussion of wage or benefit information and the main focus of the rule is removing from the
plant or revealing classified or proprietary information, a legitimate business concern.
I find that the Acting General Counsel has failed to prove that the rule could reasonably
be read to prohibit employees from discussing wage or other benefits among themselves or with
others. The rule by its terms does not prohibit the discussion of wages and other terms and
conditions of employment. Moreover, the Respondent’s rule is very similar to other rules that
the Board has found not to infringe on protected rights. For example, in the lead case of
Lafayette Park Hotel, above, 326 NLRB at 826, the Board declined to find unlawful a rule that
prohibited “divulging Hotel-private information to employees or other individuals or entities that
are not authorized to receive that information.” The Board found that employees would not
reasonably read the rule to prohibit discussion of wages and working conditions among
themselves or with a union, even though the term “hotel-private” is not specifically defined in the
rule. It also noted that employers have a substantial and legitimate interest in maintaining the
confidentiality of private and proprietary information. Ibid. See also Super K-Mart, 330 NLRB
263, 263-264 (1999); and Mediaone of Greater Florida, Inc., 340 NLRB 277, 278-279 (2003).
In support of his position, the Acting General Counsel cites Cintas Corp., 344 NLRB 943
(2005), enfd. 482 F.3d 463 (D.C. Cir. 2007); and Brockton Hospital, 333 NLRB 1367 (2001).
But those cases are distinguishable. In Brockton Hospital, the Board affirmed a judge’s finding
that a rule requiring employees to respect the confidentiality of information regarding patients,
employees or hospital operations by not discussing such information was unlawful. 333 NLRB
at 1367 fn. 3 and 1377. That rule specifically focused on employee information that might
reasonably be read to include wage and benefit information. The rule in the instant case
focuses on classified or proprietary information without specifying whether such information
relates to employees. In Cintas, the Board found unlawful a confidentiality rule, whose terms
amounted to an unqualified prohibition of the release of “any information” regarding its
employees. The rule in Cintas, like that in Brockton Hospital, but unlike the rule in the instant
case, specifically dealt with employee information; thus, the Board could properly read the rule
as broadly prohibiting employees from discussing their wage and benefit information. Nor is the
language in the Respondent’s rule any more ambiguous in its reference to classified or
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proprietary information than the reference to hotel-private information in Lafayette Park Hotel,
above, or similar references in Super K-Mart or Madiaone, above, all cases in which the Board
declined to find a violation.
Bearing False Witness. Paragraph 6(f) of the complaint alleges as unlawful the
Respondent’s rule prohibiting employees from “bearing false witness for or against the
Company under any and all circumstances.” A violation of that rule, which is labeled an
intolerable offense, is penalized by immediate discharge. The Acting General Counsel alleges
(Br. 9) that the rule, which essentially prohibits false statements, infringes on the right of
employees to make false, but nonmalicious, statements in the course of engaging in protected
concerted or union activities, citing Lafayette Park Hotel, above, 326 NLRB at 828. Respondent
contends (Br. 13) that its rule simply prohibits intentionally false statements, which, in its view,
are unprotected and thus the rule does not infringe on protected rights.
In Lafayette Park Hotel, the Board, citing numerous authorities, found unlawful a rule
that prohibited “[m]aking false, vicious, profane or malicious statements toward or concerning
Lafayette Park Hotel or any of its employees.” 326 NLRB at 828. The Board noted that
punishing employees for merely false statements, as opposed to maliciously false statements,
was overbroad and had the tendency to chill protected activity. Ibid.
I find that the Respondent’s rule can reasonably be read to prohibit merely false
statements and thus is unlawfully broad under the Board’s holding in Lafayette Park Hotel. An
ordinary employee would read the term “bearing false witness . . . against the company” to
mean that he could not tell a lie or a falsehood when talking about his employer. Not only does
the rule prohibit lying, but it is specifically focused on lies about the company. This undoubtedly
chills protected activity because employees have the right under the Act to criticize their
employer when complaining about their terms and conditions of employment and deciding
whether a union would help them in their dealings with their employer. And such criticism may
include the occasional falsehood or hyperbolic comment. See Jolliff v. NLRB, 513 F.3d 600,
609-617 (6th Cir. 2008).
Respondent’s contention (Br. 13) that its rule is lawful is based on its strained reading of
the term “bearing false witness,” which it defines, relying on the legal definition in Black’s Law
Dictionary (Revised 4th Ed. 1968), as a statement that is intentionally rather than mistakenly
false. I doubt that an employee, who does not read Black’s Law Dictionary and does not deal in
the subtleties of legal technicalities, would make that distinction. An ordinary employee reading
the term would reasonably understand it to mean simply lying or making a false statement.
There is no clarifying language in the rule that prohibits only maliciously false statements or
otherwise defines or limits the term “bearing false witness.” At the very least, the term “bearing
false witness” is so ambiguous as to confuse employees into believing that a merely false
statement against their employer in the course of protected concerted activity would subject
them to violation of the rule and possible discharge. I therefore find that the rule is violative of
Section 8(a)(1) of the Act.3
Conclusions of Law

3 Respondent’s apparent assertion (Br. 14-15) that its rule is less offensive than the rule in
Lafayette Park Hotel is without merit. The rule in Lafayette Park Hotel, which referred to both
“vicious” and “malicious” statements, which would be lawful because those statements would be
unprotected, was nevertheless found unlawfully broad because it also banned “any false”
statement. Respondent’s rule similarly bans merely false statements.
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1. By maintaining handbook rules that prohibit distribution of handbills or similar literature
on company property at any time, interruption of work and leaving one’s work station without
permission of a supervisor, and bearing false witness against the Company, Respondent
violated Section 8(a)(1) of the Act.
2. The above violations are unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
3. The Respondent has not otherwise violated the Act as alleged.
Remedy
Having found that the Respondent violated the Act by maintaining unlawfully broad
handbook rules, I will order that the Respondent cease and desist from maintaining those rules
and rescind them. In accordance with the Board’s Cintas Corp. decision, cited above, 344
NLRB at 943 and fn. 4, the Respondent may comply with the order by rescinding the unlawful
rules and republishing its handbooks without them. Alternatively, it may supply the employees
with handbook inserts stating that the unlawful rules have been rescinded, or with new and
lawfully worded rules on adhesive backing which will cover the old and unlawfully broad rules,
until it republishes the handbook without the unlawful provisions. Thereafter, any copies of the
handbook that are printed with the unlawful rules must include the new inserts before being
distributed to employees. The Respondent will also be ordered to post an appropriate notice to
employees, in accordance with J. Picini Flooring, 356 NLRB No. 9 (2010).
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended4
ORDER
The Respondent, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining in its employee handbooks, at both of its plants, rules that prohibit its
employees from distributing handbills or similar literature on company property at any time,
interruption of work and leaving one’s work station without permission of a supervisor and
bearing false witness against the Company.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the handbook rules that prohibit employees from distributing handbills or

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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similar literature on company property at any time, interruption of work and leaving one’s work
station without permission of a supervisor, and bearing false witness against the Company.
(b) Furnish all current employees with inserts for the current edition of its handbooks that
(1) advise that the unlawful provisions set forth above have been rescinded, or (2) provide the
language of lawful provisions; or publish and distribute to all current employees a revised
handbook that (1) does not contain the unlawful provisions, or (2) provides the language of
lawful provisions.
(c) Within 14 days after service by the Region, post at each of its facilities copies of the
attached notice marked Appendix.5 Copies of the notice, on forms provided by the Regional
Director for Region 26, after being signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed electronically, such as by e-mail,
posting on an intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility or facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since April 22,
2010.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. December 21, 2010
______________________
Robert A. Giannasi
Administrative Law Judge

5 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–70–10
Itta Bena, MS
Greensboro, AL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain in our employee handbooks, at both of our plants, rules that prohibit
our employees from distributing handbills or similar literature on company property at any time,
interruption of work and leaving one’s work station without permission of a supervisor and
bearing false witness against the Company.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL rescind the handbook rules that prohibit employees from distributing handbills or
similar literature on company property at any time, interruption of work and leaving one’s work
station without permission of a supervisor, and bearing false witness against the Company.
WE WILL furnish our current employees with inserts for the current edition of our
handbooks that (1) advise that the unlawful provisions set forth above have been rescinded, or
(2) provide the language of lawful provisions; or publish and distribute to all current employees a
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Greensboro, AL
revised handbook that (1) does not contain the unlawful provisions, or (2) provides the language
of lawful provisions.
TT & W FARM PRODUCTS, INC. D/B/A
HEARTLAND CATFISH COMPANY, INC. AND
HEARTLAND ALABAMA, LLC________
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1407 Union Avenue, Mid-Memphis Tower Building, Suite 800
Memphis, Tennessee 38104-3627
Hours: 8 a.m. to 4:30 p.m.
901-544-0018.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 901-544-0011.